IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO

ILDEFONSO COLON, JR and ERNESTO R. RIVERA GANDIA Plaintiffs V. ERIC HOLDER IN HIS OFFICIAL CAPACITY AS ATTORNEY GENERAL AND UNITED STATES OF AMERICA Defendants

CIVIL NO. 14-1525 DECLARATORY JUDGMENT PERMANENT INJUNCTION

COMPLAINT TO THE HONORABLE COURT:

COME NOW the plaintiff, through his undersigned attorney and very respectfully states,

alleges and prays:

I. JURISDICTIONAL STATEMENT

1. This action arises under the Constitution and laws of the United States, and this

Court has federal question jurisdiction over this action pursuant to Article III of the

Constitution and 28 U.S.C. § 1331. Venue is proper pursuant to 28 U.S.C. § 1391 since

plaintiff resides in this district. As relief, Plaintiffs pray that the Court issue the following

equitable and declaratory relief pursuant to the Declaratory Judgment Act, 28 U.S.C. §§2201-02

and its equitable powers: (a) that Puerto Rico is an incorporated territory of the United States; (b)

that as incorporated territory of the United States, Congress may not discriminate against the

residents of Puerto Rico in the laws it enacts its laws; (c) that all laws that do not give equal

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treatment to Puerto Rico residents are unconstitutional and (d) that Congress cease to discriminate

against plaintiffs as stated in the complaint.

II. THE PARTIES

2. Idelfonso Colón, Jr. is a citizen of the United States, with his permanent residence in

the Commonwealth of Puerto Rico. He is retired from the U.S. Marine Corps, receiving Social

Security payments from the United States. Ernesto R. Rivera Gandía is a citizen of the United

States, with his permanent residence in the Commonwealth of Puerto Rico, receiving Social

Security payments for the United States.

3. Eric Holder is the Attorney General of the United States of America who defends the

constitutionality of the laws of the federal government. The United States of America is the

name of this nation, which enacts its own laws and regulations.

III FACTUAL ALLEGATIONS

4. On July 25, 1998, Puerto Rico, then a colony of Spain, was invaded by the armed

forces of the United States. Pursuant to the Treaty of Paris on December 10, 1898, P.R. became

a possession of the United States of America. The Treaty was duly ratified by Congress,

30 Stat. 1754.

5. From 1898 to April 2, 1900, P.R. was governed by the U.S. military. On April 2,

1900 the Foraker Act was passed. It provided for a civil governor, named by the President of

the United States, with a 11 man council, also named by the President, but only 5 could be

Puertorricans. It also created a popularly elected House of Representatives with 35 members

and for the position of Resident Commissioner, which still exists today.

6. Subsequently, in1917, Congress passed the Jones-Shafrot Act, better known as the

Jones Act and it was signed into law by President Wilson on March 2 of that year, 39 Stat. 951.

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Puertorricans were given US citizenship and local government was expanded. The government

still consisted of a governor appointed by the President but the Senate and House of

Representatives were elected by direct vote of Puertorricans, a well as a Bill of Rights. The

Jones act also extended the jurisdiction and powers of the federal district court to include, the

naturalization of aliens in Puerto Rico. Moreover, all laws of the United States, unless they said

otherwise, would have the same force and effect in Puerto Rico as in the rest of the nation. In

addition, our federal district court became a part of the First Circuit Court of Appeals.

7. Moreover, since the beginning of the United States occupation of the Philippines, it

was clear that this nation would be given its independence. Also, Philipinos, who were to serve

gallantly in the U.S. Armed Forces were never granted US citizenship in contrast to Congress

treatment of Puerto Rico’s residents. In 1935 the Tydings-McDuffie Act, 48 Stat. 456,

established the "Commonwealth of the Philippines" for a ten-year transitory period,

culminating in independence. On July 4, 1946, the Philippine Commonwealth status ended and

the Republic of the Philippines commenced.

8. In contrast to the situation in the Philippines, further self-government ensued for

Puerto Rico but under the aegis of the United States Congress and Constitution. In 1947

Congress allowed Puerto Rico to elect its governor, which was done in 1948 and in 1952 it

allowed the first Constitution for the island. Also in 1952, the first Puertorrican born was

appointed Federal Judge in the island.

9. In 1961 Congress provided Puerto Rico with a judicial state-federal court structure

equal to that of the other States of the Union. At the time, the United States Court of Appeals

for the First Circuit reviewed judgments of the federal district court and also those of the Puerto

Rico Supreme Court as well. Public Law 87-189, 75 Stat. 417, provided that review of Puerto

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Rico Supreme Court judgments would now be before the U.S. Supreme Court.

10. In 1966 President Lyndon Johnson signed Public Law 89-571, 80 Stat. 764, which

transformed the Article IV federal district court in Puerto Rico to an Article III Court. This Act

was not conducted pursuant to Article IV, the Territorial Clause, but under Article III. “This

marks the first and only occasion in United States history in which Congress establishes an

Article III Court in a territory other than the District of Columbia.” Consejo de Salud de Playa

de Ponce v. Rullan, 586 F.Supp.2d 22, 36 (D.P.R. 2008). Subsequently, several other Federal

Judgeships were authorized for the District of Puerto Rico.

11. From the 1970’s on, the Supreme Court began recognizing the application of more

and more constitutional provisions to the island such as First and Fourth Amendment

protections as well as Equal Protection. Moreover, as stated before, all federal laws, criminal

and civil in nature, apply to Puerto Rico as they apply to the States, unless otherwise provided.

See, 48 U.S.C. § 734. Puertorricans pay full federal payroll taxes to fund Medicaid and Social

Security, import, export and commodity taxes as do all residents of the states of the Union.

Federal employees and those individuals and corporations who do business with the Federal

Government also pay federal taxes.

12. One must not forget the contributions Puertorricans to the war efforts of the United

States. Ever since the 1900 and the Phillipino insurrection, Puertorricans have served in every

conflict and banana war of the United States, including invasions of Haiti and the Dominican

Republic before they became citizens of this great nation. Eighteen thousand (including the

undersigned’s grandfather) served in WWI, sixty-five thousand in WWII, sixty-thousand in the

Korean War, forty-eight thousand in Vietnam. Over 1,200 have paid the ultimate price and

eight have received the highest military award, the Congressional Medal of Honor. Since WWI,

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almost 200,000 Puertorricans have fought in this country’s military engagements.

Proportionately, Puertorricans are always of the largest number of members of the armed

forces. For example, in Vietnam, Puertorricans proportionately outnumbered 32 states of the

Union. Moreover, their service has been exemplary and recently the 65th Infantry Regiment was

awarded the Congressional Gold Medal for its heroic service during the Korean conflict.

IV. THE LAW

12. The invasion of Puerto Rico, Cuba and the Philippines resulted in worldwide empire

for the United States. Close on the heels of Plessy v. Ferguson, 163 U.S. 53 (1896), the

Supreme Court decided the first of what has come to the called the Insular Cases, to wit, De

Lima v. Bidwell, 182 U.S. 1 (1901); Goetze v. United States, 182 U.S. 221 (1901);Dooley v.

United States, 182 U.S. 222 (1901); Armstrong v. United States, 182 U.S. 243 (1901); Downes

v. Bidwell, 182 U.S. 244 (1901); Huus v. New York and Porto Rico Steamship Co., 182 U.S.

392 (1901). These cases created an artificial, racist and spurious distinction between

incorporated and unincorporated territories. This discriminatory action continued with Balzac v.

Puerto Rico, 258 U.S. 298 (1922) and culminating in Califano v. Torres, 435 U.S. 1 (1984) and

Harris v. Rosario, 446 U.S. 651 (1980), essentially stating that as an unincorporated territory,

Congress can discriminate in economic matters as long as there is a rational basis for it.

13. Although the doctrine of unincorporated territory has no basis in the text of the U.S.

Constitution and is clearly discriminatory and in violation to the Equal Protection guarantee,

this Honorable District Court cannot overrule the Insular Cases; only the Supreme Court may

do so. This Court, however, may declare (a) that Puerto Rico is an incorporated territory of the

United States; (b) that as incorporated territory of the United States, Congress may not

discriminate against the residents of Puerto Rico in the laws it enacts its laws; (c) that all laws

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that do not give equal treatment to Puerto Rico residents are unconstitutional and (d) that

Congress cease to discriminate against plaintiffs as stated infra. Congress and the President

cannot simply decide on a whim to discriminate against 3.6 million U.S. Citizens in Puerto

Rico. This is abhorrent to the Constitution and the American way of life.

14. The Supreme Court of the United States decided in 2008 the case of Boumediene v.

Bush, 553 U.S. 723 (2008). In it, the Supreme Court had to revisit the issue of the Insular cases

and the application of the U.S. Constitution to prisoners in Guantanamo, Cuba. It’s holding is

very telling. The Court, at page 765 clearly stated:

Our basic charter cannot be contracted away like this. The Constitution grants Congress and the President the power to acquire, dispose of, and govern territory, not the power to decide when and where its terms apply. Even when the United States acts outside its borders, its powers are not “absolute and unlimited” but are subject “to such restrictions as are expressed in the Constitution.” Abstaining from questions involving formal sovereignty and territorial governance is one thing. To hold the political branches have the power to switch the Constitution on or off at will is quite another. The former position reflects this Court's recognition that certain matters requiring political judgments are best left to the political branches. The latter would permit a striking anomaly in our tripartite system of government, leading to a regime in which Congress and the President, not this Court, say “what the law is.” (citation omitted)

15. Hence, neither Congress nor the President may decide when the Constitution applies

to those living in Puerto Rico. To do so would be a violation of the Equal Protection guaranteed

by the Fifth Amendment of the United States Constitution.

16. In addition, the Court in Boumediene, at page 758 stated that “[i]t may well be that

over time the ties between the United States and any of its unincorporated Territories

strengthen in ways that are of constitutional significance.” As discussed supra, Puerto Rico’s

relation with the United States has become more and more like that of a state than a territory

that will be given its independence, as was the Philippines. Moreover, in November of 2012,

Puertorricans voted against the current colonial status and overwhelmingly in favor of

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statehood. Clearly, the island’s relation with the United States has changed.

17. This is not only plaintiffs’ position, it is the holding of Judge Gelpí of this District.

In Consejo de Salud de Playa de Ponce v. Rullan, 586 F.Supp.2d 22, 43-44 (D.P.R. 2008), after

a careful historic-legal analysis, held as follows:

The court, rather, today holds that in the particular case of Puerto Rico, a monumental constitutional evolution based on continued and repeated congressional annexation has taken place. Given the same, the territory has evolved from an unincorporated to an incorporated one. Congress today, thus, must afford Puerto Rico and the 4,000,000 United States citizens residing therein all constitutional guarantees. To hold otherwise, would amount to the court blindfolding itself to continue permitting Congress per secula seculorum to switch on and off the Constitution. (emphasis in the original)

18. Moreover, not only did Judge Gelpí make these findings, which still stand, but

ordered the certification to the Attorney General of the United States that the constitutionality

of a federal statute appeared to be drawn into questions. See dockets 135-136 of case 06-1260.

The Attorney General responded to this request, see docket 145 of case 06-1260. Subsequently,

the United States, through the Attorney General, moved for intervention in the case, docket 206

of case 06-1260 and continued the defense of the challenged statutes, dockets 766 and 830 of

case 06-1260. Hence, the Attorney General is quite familiar with the holdings of Judge Gelpí as

to P.R. being an incorporated territory.

VI. SSI IS AVAILABLE TO THOSE LIVING IN PUERTO RICO

19. Ildefonso Colón, Jr. (Ildefonso) is retired from serving for 25 years in the United

States Marine Corps, attaining the rank of First Sergeant. Due to the wounds received in

combat in Iraq and Afghanistan, Ildefonso receives disability compensation from the Social

Security Administration. He retired with his wife to Puerto Rico since his father had always

asked him to come to back to Puerto Rico to contribute to the island’s future. When he retired,

his father was still alive and also needed this help. Unfortunately, he died this year.

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20. Ildefonso is a person eligible for Supplemental Security Income (SSI) if he lived

anywhere in the United States except Puerto Rico. He would receive around $400 more a

month if he lived in any other states of the Union thorough SSI. Hence, he has an injury in fact

that provides him with standing to sue in this case. This type of discrimination could be

constitutional pursuant to Harris v. Rosario, ante, if Puerto Rico were a non incorporated

territory but it is not, as well established above. Hence, the Court should declare that this

discrimination must stop since it is unconstitutional. It should also declare that those persons

who are eligible for SSI payments may claim them as any other person who lived in any state

of the Union.

21. Ernesto R. Rivera Gandía (Ernesto) is retired. He receives income from the Social

Security due to his age. He served for two year with the U.S. Navy and saw action in Vietnam.

Ernesto retired after working for many years in Puerto Rico and lives in Guaynabo, P.R.

22. Ernesto is a person eligible for Supplemental Security Income (SSI) if he lived

anywhere in the United States except Puerto Rico and therefore would have a higher income

Hence, he has an injury in fact that provides him with standing to sue in this case.This type of

discrimination could be constitutional pursuant to Harris v. Rosario, ante, if Puerto Rico were a

non incorporated territory but it is not, as well established above. Hence, the Court should

declare that this discrimination must stop since it is unconstitutional. It should also declare that

those persons who are eligible for SSI payments may claim them as any other person who lived

in any state of the Union.

VIII. ATTORNEYS FEES AND COSTS

23. Plaintiffs claim attorney’s fees and costs in this litigation pursuant to 28 U.S.C. §

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2412 and 5 U.S.C. § 504, if the Honorable Court finds them applicable.

WHEREFORE, plaintiff respectfully requests from this Honorable Court that it find for

plaintiffs and make the following determinations:

a. That Puerto Rico is an incorporated territory of the United States;

b. That as an incorporated territory, Congress cannot discriminate against persons

living in the island;

c. Declare that those persons who file federal income tax returns may claim the Earned

Income Tax Credit when applicable as it would applicable anywhere else in the

nation;

d. Declare that this discrimination must stop since it is unconstitutional. It should also

declare that those persons who are eligible for SSI payments may claim them as any

other person who lived in any state of the Union;

e. Issue a permanent injunction against the United States and Congress against any

discrimination against PR inconsistent with its status as an incorporated territory;

f. Any other remedy the Court determines is fair in law and equity.

Respectfully submitted on this day of July 2014.

/s John E. Mudd John E. Mudd Bar Number: 201102 Attorney for Plaintiffs LAW OFFICES JOHN E. MUDD P. O. BOX 194134 SAN JUAN, P.R. 00919 (787)413-1673 Fax. (787)753-2202

email jemudd@yahoo.com